United States of America, Plaintiff-appellee, v. Thomas Justin Millican, Ind. and D/b/a Hip Magazine,defendant-appellant, 487 F.2d 331 (5th Cir. 1973)

The appellant, publisher of HIP magazine, was convicted in a non-jury trial on two counts of using the mails to distribute obscene material in violation of 18 U.S.C.A. Sec. 1461. The defendant used the mails for delivery of HIP magazine which carried an advertisement for the film "In Deep" which the trial judge found to be obscene. The film was ordered and received through the mails by a postal inspector, using an alias under which he had entered a subscription for HIP magazine. In light of our recent decision in United States v. Thevis, 5 Cir., 1973, 484 F.2d 1149 we find the trial judge made a proper determination regarding the film's obscenity and we affirm the conviction.

The appellant testified that he did not deal in films and upon receiving this order from an inspector, he went to a local book store, purchased the film, sight unseen, and then mailed it as requested. Even if we accept the fact that Millican did not see the film prior to mailing it, there is ample evidence to establish the existence of requisite knowledge that Millican was aware of the contents of the film since it need not be shown that he knew such contents were in fact legally obscene. Thevis, supra.

After reviewing the film, we agree that the District Judge made a proper determination regarding the film's obscenity. As Thevis delineates, the proper review procedure for determining whether pre-Miller, 1973, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 material is obscene is to test the material under both Memoirs, 1966, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, and Miller. This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction. Since we have concluded that the film is obscene under both Miller and Memoirs. the decision of the District Court is affirmed.

Affirmed.